- EVIDENCE - CIRCUM- 113. CRIMINAL LAW (§ 1091*)-APPEAL-BILL OF EXCEPTIONS.

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20. CRIMINAL LAW (§ 1122*) — APPEAL AND | accused's silence, was harmless if the remark ERROR QUESTIONS PRESENTED FOR REVIEW. was not an accusation. Objections in the motion for new trial to a charge not in the record cannot be considered on appeal.

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35. SEDUCTION (§ 50*)-PROSECUTION.

In a prosecution for seduction, a charge that the prosecutrix is an accomplice, that accused cannot be convicted upon her uncorroborated testimony, that the corroboration must not only prove the offense but connect accused with its commission, taken in connection with a special charge requested by accused which instructed the jury that the prosecutrix was an accomplice and that her subsequent acts cannot be considered as corroborative of her testimony, is correct under Code Cr. Proc. 1895,

art. 769.

[Ed. Note.-For other cases, see Seduction, Cent. Dig. 88 89-92; Dec. Dig. § 50.*]

Davidson, P. J., dissenting.

Appeal from District Court, San Augustine County; W. B. Powell, Judge.

John Knight was convicted of seduction, and appeals. Affirmed.

King & King and Wm. McDonald, for appellant. D. M. Short & Sons and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J. In this case appellant was prosecuted, charged with seduction, was convicted, and his punishment assessed at three years confinement in the penitentiary.

The record discloses that the alleged seduced female and appellant are cousins, and prior to this occurrence both were of good standing. The prosecuting witness, Miss Annie Slaughter, testified that she was 21 years old, and that defendant was 23 years of age; that they were third cousins. That she had known defendant about six years; that appellant first began to come to see her or court her in the fall of the first year she met him. She was living with her parents in the Polk neighborhood at that time, and he continued to come to see her for three and a half years. That she was pregnant, and John Knight was the cause of the pregnancy; that she had never had intercourse with any one else except John Knight. That she had testified at the examining trial of defendant, and shortly thereafter, while at home, she was told by her mother to go to the telephone. That she had a talk with John Knight over the telephone. That she recognized his voice, and that he asked her if she would come to the residence of Mr. Crockett, as he wanted to have a conversation with her. That she asked her mother, and agreed to meet him at the residence of Mr. Crockett. That her aunt, Mrs, Mattie Goldsberry, went with her. That Mr. Crockett met them at the door, and when they went in defendant was there. That defendant and Mr. Crockett refused to talk in the presence of her aunt, and wanted her aunt to retire. This her aunt refused to do, and she had no conversation with the defendant at this time. That during the years 1907, 1908, and 1909, she had corresponded with defendant and indentified a number of letters which were introduced in evidence. That she first became engaged

to marry appellant about Christmas in 1907, and that the engagment continued until in April, 1909. That the engagement was renewed in May, 1910. That she was at the residence of Mr. Jim Buley in December. 1907, when she and defendant first became engaged to be married, and that defendant had been coming to see her for about a year and a half at that time, and continued his visits and correspondence until in January, 1909, when the first act of intercourse with defendant occurred. That she had never had intercourse with any one else. That in the fall of 1908, when defendant came back from school, he said he was going into business the next year, and would be ready for her. That was about a month before the first act of intercourse. That the first time he ever suggested having sexual intercourse with her was at Rebecca switch in 1908. He did not come right out and say what he wanted, but she knew by his actions and his ways, and she told him she only had her character. That he knew her father was not a wealthy man, and that she had to shield her character, and he said not to be uneasy about her character, he would never mar it, and that as they were going to get married what difference did it make, but she refused at that time; but that in January, 1909, while he was visiting her at her father's home and while she was sitting in his lap, he had carnal intercourse with her the first time. She testified to other acts of intercourse subsequent to this time in 1909, one in about a week subsequent to this time, and one in April. That in April, 1909, a disagreement came up. That she had intercourse with him that day, when she told him that they should either marry or such proceedings should stop. "He said it did not make any difference as we were going to marry anyway, and he didn't see why I shouldn't want to grant his wishes, but he said, 'I can quit coming to see you if you want me to.' I told him I didn't mind his coming, but such proceedings as that I wouldn't go through with any more. Such proceedings as I have mentioned give me pain and very much humiliation." That was the afternoon he asked her to let him see the ring, and she gave it to him. This was the ring she termed the engagement ring. She says she did not ask him what he wanted with it, and he kept it, and she supposed he considered the engagement broken off after he got the ring as he did not come to see her any more until in May, 1910. She says: "He came to go walking. He said that John Garrett and Eula Smith would meet us at the college campus. He didn't say where we were going; he said we would decide when we all got together where we would go. He came to my house and we went up to the college. My mother

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

marry me. This was in December, 1907. The understanding was that we would be married when he got able to take care of me, and in December, 1908, he had said he would be ready for me next year-that he was

was at home at the time he came. No one but when he got financially able to he would left home at that time with me but the defendant, John Knight, and we went south towards the college campus and we joined Eula Smith and John Garrett there. That was in May, 1910. John Knight and John Garrett and Eula Smith and myself went going in business." She was asked in regard over to Matthew Cartwright's pasture. We to her testimony at the examining trial, and went by Mr. John Brooks' place going a defendant introduced a part of her testimony, trail-we went through a large gate into it being as follows: "He had been going to the pasture. John Knight and myself went see me about two years before we became in first. After we went through the gate engaged. I do not remember how he apinto the pasture we did not go together-proached the subject of marrying. He never John Garrett and Eula Smith went to the did come plain out and engage to marry me. right, and John Knight and myself went At the time he first had intercourse with down further to the left. When John me, and at all of the other times that he Knight and myself came out of the pasture, had intercourse with me up until last May, we met Eula Smith and John Garrett at the there was nothing said about marrying. gate. I suppose we were down in the pasture The first act of intercourse was in January, about two hours. That was a large pasture 1909." and full of shrubbery. We went to a shady place and sat down and talked of the general happenings of the town, and then I asked him for the first time why he had done me like he had the year before. He said: 'You know I love you better than any other girl but you seem so strange; I couldn't come back to see you.' I told him that if he cared as much for me as he said he did he wouldn't stay away on that account. He said, 'Well, I have been into a little trouble but I still love you, and when I get out of this trouble I am going to marry you,' and then proceeded to put his arm around me and and I withdrew and told him not to do that, that it didn't make any difference if I still loved him. He then placed me on the ground and had intercourse with me. After I had sexual intercourse with the defendant, John Knight, in Mr. Cartwright's pasture in May, 1910, I had sexual intercourse with him at my home in the parlor and on the front porch. The date of the last sexual intercourse with the defendant was the second week of July, 1910. I yielded to the defendant and had those sexual intercourses with the defendant only because he promised to marry me. He promised to marry me again in May, 1910, and I was afraid if I did not submit to his wishes he would not marry me. I had faith in his promises, or I would never have submitted myself to no such conduct with him."

On cross-examination she stated that if she had testified that the first time they became engaged was in December, 1907, that she meant 1906, as that was the time it was, and it was renewed in Mr. Buley's house. That they had become engaged at her uncle's home in December, 1906, when he told her how much he loved her, and asked her if she would wait for him, and she had told him that she would. That defendant had got mad in the summer, but the engagement was not broken, and when he came to see her Christmas it was renewed. "He told me at this time he was not able to take me then,

[1] 1. The defendant did not testify in the case. The first bill of exceptions relates to the admissibility of the testimony of the witness Barto McClary, who testified that in the spring of 1907 he delivered a package to the prosecuting witness, which was about an inch square and resembled a box in which rings are ordinarily kept, to which testimony defendant objected. The state had proved that appellant had bought a ring at the store at which this witness was working about the time, and the prosecuting witness, Miss Slaughter, testified that this witness brought her the ring, which was the engagement ring, in May, 1907, and she kept it until in April, 1909, when defendant had in person requested its return, and took it. Under all these circumstances we think this testimony admissible.

[2] 2. In the second bill of exceptions it is stated that Mrs. Kate Slaughter, mother of prosecutrix, had testified that on Thursday, after the examining trial of appellant on this charge, some one, and she testified it was appellant, called her up and asked to speak to the prosecuting witness, to which appellant objected, stating various reasons. This witness testified that she recognized appellant's voice, and had often talked with him over the telephone. This was followed up by the testimony of the prosecuting witness that her mother instructed her to go to the telephone, and when she went to the telephone she recognized appellant's voice, and appellant made an engagement to have a conversation with her at the residence of Mr. Crockett. That in accordance with this engagement she went to Mr. Crockett's and appellant was there. There was no error in admitting the testimony, for, in addition to the witness testifying she knew and recognized his voice, it is followed by evidence that renders it clear that it was appellant talking.

[3] 3. In the third bill appellant objects to Mrs. Mattie Goldsberry testifying as to what was said when she and her niece (the

of the girl. The boy asked me if I did not trust him, John Knight asked me that question, and also asked me if I didn't believeLet me go back a little. I said I told Mr. Crockett that I could not say that, if he did not want to marry the girl, I could not see what his object was unless it was

to get this girl in her cowed condition to use something against herself, and might force Geo. Crockett as a witness- And so Mr. Crockett said that he did not like the

that he was trying to mend matters, and this young man asked me if I would not believe Mr. Geo. Crockett-if I did not believe that Mr. Crockett would tell the truthand I said I did not think it was a question of Mr. Geo. Crockett's integrity at all, that I had as much confidence in him as any one, but I thought that it looked like they were using Mr. Crockett as a tool, and so we talked and we talked on this same line and I finally asked Mr. Foster's advice. Mr. Foster is a lawyer and I said if I was wrong I would like to know it. They did not talk. He would not talk because he would not talk in my presence. I left there and took the girl with me. The defendant was present during the whole time."

prosecuting witness) went to the residence do it, that I thought they had the advantage of Mr. Crockett, and especially that part wherein she stated she objected to her niece having a conversation with defendant alone in the presence of Mr. Crockett, when she was requested to retire, and further said she did not think they had any talk coming; that all they needed was a marriage license and a preacher. The witness' entire testi- to talk in Mr. Crockett's presence and try mony is as follows: "I know J. A. Slaughter; he is my half-brother. I know Miss Annie Slaughter. She is a daughter of J. A. Slaughter, my own niece. I know John Knight. I have known him since he was responsibility of such a position but said a child. I know Mrs. Kate Slaughter; she is my half-brother's wife. I remember about the examining trial wherein John Knight was charged with having seduced Miss Annie Slaughter here in town. Some time after the examining trial, along about the first of December, I went with Miss Annie Slaughter to Mr. Geo. Crockett's. We went from my half-brother's house, J. A. Slaughter's house, to Geo. Crockett's. There was no one else accompanied Miss Annie and myself to Mr. Crockett's except the driver with the surry. When we reached Mr. Crockett's we found the defendant, John Knight, there at Mr. Crockett's. When I went in with my halfniece, Mr. Crockett carried me into the room where John Knight was sitting and I made some remarks about the weather, and then This occasion was the result of appellant's Mr. Crockett said to me that John Knight effort to arrange a private interview with had requested that Annie Slaughter come prosecutrix, and the aunt had the right there that he might talk with her. That to state to him the objections to such interoccurred in John Knight's presence. Mr. view, and the fact that he made no reply Crockett said that John Knight wanted to indicated that he was unable to combat them talk to Annie alone in his presence. He or to deny them. When any statement is wanted to talk to Annie Slaughter in Mr. made in the presence of one accused of crime Crockett's presence and me leave the room, which calls for a reply, his silence imports and I said that I did not think there was his inability to truthfully deny it. The aunt any subject to be discussed between John objected to any conversation, but said what Knight and Annie Slaughter except the sub- was needed was a marriage license and a ject of marrying and a preacher. That they preacher. The appellant had arranged the had talked enough heretofore, and so when meeting and asked for a private talk beI said that Mr. Crockett said he thought so tween himself and his alleged victim; the too. He said he did not know anything guardian angel of the latter said nay, no about it. That he was there to try to help talk, but action in the form of a license and matters, and I refused then to leave the a preacher; the appellant answers nothing. room for John Knight to talk with Annie Surely, under such circumstances, it was Slaughter in Mr. Crockett's presence and no incumbent upon him to deny that the office other one present. I told Mr. Crockett I of a marriage license and a preacher were thought that they had the advantage. John demanded by the environments of the ocKnight had asked her presence over there, casion. He stood mute in the face of the and Annie's father was not at home, and implied accusation, and surely this action I came with her and I told Mr. Crockett I was admissible as a fact to go to the jury. thought that he had the advantage of the No one save appellant knew his purpose in girl, that Mr. Crockett was this young man's seeking a private interview with the chief kinsman, also his bondsman, and that I witness against him, and when the aunt thought it was taking undue advantage of tells him a license to marry and a preacher the girl for her- Well, I thought they had were the only things appropriate under the the advantage of the girl. I told Mr. Crock- existing conditions, wherein stood face to ett that he was related to the boy and he face, in the presence of assembled witnesses, was his bondsman and that they did not he who stood charged with the offense of ask to talk alone, that they asked for Mr. seduction, and she whom it is alleged he Crockett to be present there and not to allow had seduced, and he remains mute under me to be there, and so I said I would not those circumstances, the fact is admissible